[2015] KEELRC 1406 (KLR)
The court held that there were no new matters of fact or changes in the law since the ruling of 15th December 2014 that would justify a review or setting aside of the previous order. The issue of representation by an unqualified person is a fundamental legal issue that was properly raised and determined. Any alleged...
Source-derived case information.
- Citation
- [2015] KEELRC 1406 (KLR)
- Parties
- Applicant: Athumani Lali; Respondent: Nyali International Beach Hotel
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 60 of 2014
- Procedural Posture
- Review Application / Ruling on Application to Review and Set Aside Previous Order
- Outcome
- application dismissed
- Judges
- J Rika
- Legal Topics
- Right of Audience, Representation by Advocate, Review of Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Athumani Lali
Applicant
Nyali International Beach Hotel
Respondent
Procedural Posture
Review Application / Ruling on Application to Review and Set Aside Previous Order
Legal Issues
- 1 Whether the application for review and setting aside of the ruling dated 15th December 2014 is merited.
- 2 Whether the issue of legal representation by an unqualified person can be revisited by way of review.
Ratio Decidendi
The court held that there were no new matters of fact or changes in the law since the ruling of 15th December 2014 that would justify a review or setting aside of the previous order. The issue of representation by an unqualified person is a fundamental legal issue that was properly raised and determined. Any alleged misapprehension of the law by the court is not a ground for review but is instead a matter for appeal. Therefore, the application for review was dismissed and the preliminary objection upheld, with costs to the respondent.
Court Disposition
application dismissed
Orders
- The application dated 4th February 2015 is dismissed with costs to the respondent.
- The orders of the court dated 15th December 2014 stand.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA
AT MOMBASA
CAUSE NO. 60 OF 2014
BETWEEN
ATHUMANI LALI ….................................................................... CLAIMANT
VERSUS
NYALI INTERNATIONAL BEACH HOTEL ......................... RESPONDENT
Rika J.
Court Assistant – Mr. Kombe
Mr. Nyamai instructed by Nyamai & Associates for the Claimant
Mr. Otieno Advocate instructed by Omondi Waweru & Company Advocates for the Respondent
RULING
The Court made a ruling on 15th December 2014. It was ordered that the Claim herein is filed by an unqualified person, therefore incompetent, and struck out with costs to the Respondent.
The firm of Nyamai and Associates, filed an Application dated 4th February 2015 seeking to review and set aside the ruling of 15th December 2014.
Upon reading the said application, and upon hearing the submissions made by Mr. Otieno by way of a Preliminary Objection, and the response by Mr. Nyamai, the Court is persuaded and finds:-
There are no new matters of fact, and no change in the Law from 15th December 2014, warranting the Court to revisit its ruling.
The question of representation is a fundamental issue of law, and is properly raised by Mr. Otieno as a Preliminary Objection.
This Court could have misapprehended the Law, but that is not a ground to warrant revisiting of the ruling. If the Claimant or his representative are persuaded the Court misapprehended the law, the proper recourse is for them to appeal the ruling in the Court of Appeal, rather than force their way back to this Court.
Mr. Nyamai and Mr. Athumani Lali should therefore pursue their appellate, rather than review option. If the Court of Appeal finds Mr. Nyamai can legally represent Mr. Lali, we shall grant Mr. Nyamai such audience. For now, and regrettably the orders of the Court dated 15th December 2014 must stand. The Preliminary Objection is upheld, and application dated 4th February 2015 dismissed, with costs to the Respondent.
Dated and Delivered at Mombasa this 23rd day of February 2015.
James Rika
Judge